Supreme Court Rules on Presidential Immunity, Requiring a New Hearing to Determine Which Acts of Trump's Were "Official" Acts

The Supreme Court did what many expected it would do: It recognized that presidential immunity exists, but only for certain official actions taken by the president.

First of all, the Court notes that previous decisions have held there is no presidential immunity when it comes to subpoenas for evidence. But the Court rules that these precedents are limited to the case of subpeonaeing records, and do not rule out immunity to criminal prosecution.

It broke the scheme of presidential acts into three categories:

"Core" official acts, which I assume are presidential actions taken in furtherance of the president's specified duties in the Constitution. So a President could never be prosecuted for conducting foreign policy or directing the military.

"Official" acts, which may or may not qualify for immunity. Which acts are "official" and which of those "official" acts will qualify for immunity has to be decided on a case-by-case basis.

Finally, "unofficial" acts are those that the president undertakes not in furtherance of a presidential power, but only in his capacity as an individual. These never qualify for immunity.

From the syllabus (the quick summary) of the decision:

Article II of the Constitution vests "executive Power" in "a President of the United States of America." 1. The President has duties of "unrivaled gravity and breadth." Trump v. Vance, 591 U. S. 786, 800. His authority to act necessarily "stem[s] either from an act of Congress or from the Constitution itself." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 585. In the latter case, the President's authority is sometimes "conclusive and preclusive." Id., at 638
(Jackson, J., concurring). When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President's actions. It follows that an Act of Congress--either a specific one targeted at the President or a generally applicable one--may not criminalize the President's actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that
examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. Pp. 6--9.

That doesn't really apply here, though. At least I don't think it does.

(2) Not all of the President's official acts fall within his "conclusive and preclusive" authority. The reasons that justify the President's absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress. To determine the President's immunity in this context, the Court looks primarily to the Framers' design of the Presidency within the separation of powers, precedent on Presidential immunity in the civil context, and criminal case where a President resisted prosecutorial demands for documents.

(The Framers designed the Presidency to provide for a "vigorous" and "energetic" Executive. The Federalist No. 70, pp. 471--472 (J. Cooke ed. 1961) (A. Hamilton). They vested the President with "supervisory and policy responsibilities of utmost discretion and sensitivity." Nixon v. Fitzgerald, 457 U. S. 731, 750.

Trump's lawyers will seize on this to try to argue that he has a supervisory role in guaranteeing that elections are conducted properly.

Appreciating the "unique risks" that arise when the President's energies are diverted by proceedings that might render him "unduly cautious in the discharge of his official duties," the Court has recognized Presidential immunities and privileges "rooted in the constitutional tradition of the separation of powers and supported by our history." Id., at 749, 751, 752, n. 32. In Fitzgerald, for instance, the Court concluded that a former President is entitled to absolute immunity from "damages liability for acts within the 'outer perimeter' of his official responsibility." Id., at 756.

The term "outer perimeters" helps Trump here. Even if Trump's actions were performed in the "outer perimeters" of his authority, he'd still be owed immunity.

But he'll have to make that argument. And Chutkan will rule against him.

The Court's "dominant concern" was to avoid "diversion of the President's attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision." Clinton v. Jones, 520 U. S. 681, 694, n. 19.

Thanks, Bill Clinton, for that precedent!

The Court then turns to analyzing prior decisions which rejected absolute immunity in cases where the president wished to shield papers (and auditapes) from discovery at trial. After summarizing those precedents, the court announces they don't apply here:

Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession. The danger is greater than what led the Court to recognize absolute Presidential immunity from civil damages liability--that the President would be chilled from taking the "bold and unhesitating action" required of an independent Executive. Fitzgerald, 457 U. S., at 745. Although the President might be exposed to fewer criminal prosecutions than civil damages suits, the threat of trial, judgment, and imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages. The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions un- der "a pall of potential prosecution," McDonnell v. United States, 579 U. S. 550, 575, raises "unique risks to the effective functioning of government," Fitzgerald, 457 U. S., at 751. But there is also a compelling "public interest in fair and effective law enforcement." Vance, 591 U. S., at 808.

Taking into account these competing considerations, the Court concludes that the separation of powers principles explicated in the Court's precedent necessitate at least a presumptive immunity from criminal prosecution for a President's acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no "dangers of intrusion on the authority and functions of the Executive
Branch." Fitzgerald, 457 U. S., at 754. Pp. 12--15.

More helpful language: Biden's political prosecutors will have to prove that their prosecution will not chill future presidents from acting according to their judgement.

(3) As for a President's unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure that the President's decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct. Clinton, 520 U. S., at 694, and n. 19. The separation of powers does not bar a prosecution predicated on the President's unofficial acts. P. 15.

(b) The first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions. In this case, no court thus far has drawn that distinction, in general or with respect to the conduct alleged in particular. It is therefore incumbent upon the Court to be mindful that it is "a court of final review and not first view." Zivotofsky v. Clinton, 566
U. S. 189, 201. Critical threshold issues in this case are how to differentiate between a President's official and unofficial actions, and how to do so with respect to the indictment's extensive and detailed allegations covering a broad range of conduct. The Court offers guidance on those issues. Pp. 16--32.

It offers guidance on these issues, but not a ruling on them. Thus, lower courts will have to review the facts in light of the Court's guidance.

...

In dividing official from unofficial conduct, courts may not inquire into the President's motives. Such a "highly intrusive" inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on "every allegation that
an action was unlawful," depriving immunity of its intended effect.

Via Ed Morriseey, more guidance from the Court. Morrissey summarizes...

Roberts has already cut off a couple of arguments from Smith. The indictment alleged that Trump used the Department of Justice to perform a "sham" election-fraud probe in an effort to overturn the election. However, the DoJ falls entirely within the president's constitutional authority...

...and then goes back to quoting the Court:

The indictment's allegations that the requested investigations were "sham[s]" or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186--187, Indictment Paragraph 10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

But while Trump has immunity for discussions with federal officials under a president's control and supervision, his calls with state officials are not necessarily immune:

Unlike the allegations describing Trump's communications with the Justice Department and the Vice President, these remaining allegations involve Trump's interactions with persons outside the Executive Branch: state officials, private parties, and the general public. Many of the remaining allegations, for instance, cover at great length events arising out of communications that Trump and his co-conspirators initiated with state legislators and election officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin regarding those States' certification of electors. See App. 192--207, Indictment paragraphs 13-- 52. ...

Unlike Trump's alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function. The necessary analysis is instead fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons. And the parties' brief comments at oral argument indicate that they starkly disagree on the characterization of these allegations. The concerns we noted at the outset--the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties--thus become more prominent. We accordingly remand to the District Court to determine in the first instance--with the benefit of briefing we lack--whether Trump's conduct in this area qualifies as official or unofficial.

So: We need a hearing, and the lower court never had one.

It looks to me like the arguments which will now be heard will concern whether Trump's calls to governors on election night were "official" acts -- he can argue the president has the right to make sure federal election laws are being followed -- and which are unofficial acts he took simply as an individual/as a candidate for office.

As for retaining government documents -- this was plainly done as a private citizen. He wasn't president any longer, so it can't be said he was holding on to documents as part of his official duties as president.

So this decision will slow the hyperpartisan leftwing DC judge, Tanya S. Chutkan, overseeing the January 6th prosecution against Trump.

These arguments will require a hearing, and then a judge's written decision.

The DC judge is a gungho partisan who barely attempts to conceal it. I assume she will call for hearings as soon as possible, schedule two days for arguments, and then publish her decision -- which she's already writing now, ahead of arguments -- a day or two later.

But judge's decision will presumably then be appealable, first to the DC Circuit of Appeals and then the Supreme Court. I don't expect Trump to win in the trial court or the DC Court of Appeals. He might win in the Supreme Court.

But this should cause enough delay to push the DC trial past the elections.

Amy Coney Barrett, of course, only concurs with part of the opinion, and adds that in her mind, presidential immunity should have been construed "very narrowly."

On remand [re-deciding the case after being rebuked by the Supreme Court], the lower courts will have to apply that standard to various allegations involving the President's official conduct.2 Some of those allegations raise unsettled questions about the scope of Article II power, see ante, at 21--28, but others do not. For example, the indictment alleges that the President "asked the Arizona House Speaker to call the legislature into session to hold a hearing" about election fraud claims. App. 193. The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.

Update: Thanks to FenelonSpoke, Professor William Jacobsen of Legal Insurrection decides, on the whole, that this is a [blockquote caps in original] "A VERY GOOD DAY FOR TRUMP."

Below, a parody of the Wise Latina's hyperbolic dissent:

Apparently the dissent by Sotomayor (and by Jackson) made stupid claims like "this means the president can commit murder!" All the lefties are citing this as if it's the real decision of the court, rather than the dissenters offering a tendentious re-interpretation of their words to make them sound absurd.

Hysterical bitches: This "Hill staffer" says she feels, get this, unsafe.

Stephanie Perera @ItsStephPerera

Are all the Hill staffers who lived through J6 ok right now? Asking because as one of them I am very much not.

posted by Disinformation Expert Ace at 12:34 PM

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